No. 92-168 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

CHARLES D. PIERCE and 

WITNEY H. FERDINAND, 

Defendants and Appellants, 

APPEAL FROM: District Court of the Tenth ~udicial ~istrict, 

In and for the County of Judith Basin, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Bradley 3. Parrish, Attorney at Law, Lewistown, 

Montana 

Craig R. Buehler, Attorney at Law, Lewistown, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Paul D. 

Johnson, Assistant Attorney General, Helena, 

Montana 

James A. Hubble, Judith Basin County Attorney, 

Stanford-, Montana 

Fil 

Submitted on Briefs: October 9, 1992 

Decided: November 24, 1992 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Tenth Judicial ~istrict, ~udith 

Basin County, the Honorable Peter L. Rapkoch presiding. Appellants 

Charles Pierce (Pierce) and Whitney Ferdinand (Ferdinand) were 

found guilty of felony burglary and felony theft after a bench 

trial on September 9, 1991. Pierce and Ferdinand appeal on the 

grounds that the ~iatrict Court improperly denied their motion for 

reduction of the burglary charge to criminal trespass and their 

motion to dismiss the felony theft charge and replace it with a 

misdemeanor theft charge. We affirm. 

On ~pril 10, 1991, Pierce and Ferdinand were traveling west on 

Montana Highway 87, en route from Billings to Kalispell. Pierce 

was driving a pickup truck the pair had used to deliver a trailer 

for Pierce's family business in Kalispell. At Windham they turned 

off the highway onto an unpaved lane and drove about a quarter of 

a mile into the yard of an old farmstead known locally as the Ray 

place. It was 7:30 in the evening, still light enough for a 

witness to see the pickup turn off the highway and park in the 

farmyard. The witness was Ray Sherer, who leased the property and 

lived in a trailer at the junction of the lane and the highway. 

Sherer testified that he saw the truck stop near a bunkhouse. 

He telephoned the property owner, John Tripp, who also lived at the 

junction of the lane and the highway, and asked whether he had 

given anyone permission to drive into the farmyard. Tripp said he 

had not, so Sherer called the sheriff . Then, watching through 

binoculars, he saw a man, later identified as pierce, use an 

2 
eighteen-inch bar to break the padlock off the bunkhouse door. 

By the time Undersheriff John Shilling arrived, five to ten 

minutes later, Pierce and Ferdinand had removed several items from 

the bunkhouse and placed them in the pickup. They had also broken 

the padlock on the back door of the farmhouse, but before they 

could remove anything from the house, Sherer and Shilling had 

driven into the farmyard. Shilling testified that he looked into 

the bed of the pickup truck at that time and saw an old school 

desk, a box containing several miscellaneous items, and a wall 

clock. He advised Pierce and Ferdinand of their rights and placed 

them under arrest. After the sheriff arrived, Pierce acknowledged 

that the items in the pickup truck, including two items in the cab, 

had come from the bunkhouse. 

Ferdinand's motion to sever her case from Pierce's was denied, 

and the two were tried as co-defendants. The District Court heard 

the evidence after the two defendants waived jury trial, and on the 

same day Judge Rapkoch and the three attorneys visited the Ray 

place. On the basis of the evidence presented at trial and his 

personal observation, Judge Rapkoch found that the bunkhouse and 

farmhouse Pierce and Ferdinand had broken into were "occupied 

structuresu and ruled that their offense therefore was burglary 

under § 45-6-204(1), MCA. He also ruled that the retail value of 

$416 assigned to the stolen items by the State's expert witness was 

the relevant value for determining whether the defendants were 

guilty of misdemeanor theft or felony theft, and found them guilty 

of felony theft under § 45-6-301(6), MCA. 
Pierce, who had a prior burglary conviction and several DUI 

convictions on his record, received a five-year suspended sentence 

and was fined $500. Ferdinand, who had no prior criminal history, 

received a two-year deferred sentence and was fined $250. Both 

were ordered to pay costs, restitution, and a $20 surcharge. 

The issues on appeal are: 

1. Whether the State presented sufficient evidence that the 

buildings Pierce and Ferdinand entered were "occupied structuresM 

so as to support a burglary conviction. 

2. Whether the State presented sufficient evidence of the 

value of the stolen property to support a conviction of felony 

theft. 

I 

When sufficiency of evidence is at issue on appeal, our 

standard of review is whether, after reviewing the evidence in a 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt. State v. Bower (Mont. 1992), 833 P.2d 1106, 

1110, 49 St.Rep. 586, 588. 

Burglary is a felony under 5 45-6-204, MCA, and occurs when a 

person "knowingly enters or remains unlawfully in an occupied 

structure with the purpose to commit an offense therein." The 

first issue on appeal is whether the State presented sufficient 

evidence that the buildings Pierce and Ferdinand entered were 

lloccupied ~tructures.~~ Appellants argued that the buildings at the 

Ray place were not occupied structures, and that their offense 
therefore was merely criminal trespass, a misdemeanor under 5 45-6- 

203, MCA. An occupied structure is defined in 5 45-2-101 (40) , MCA, 

any building, vehicle, or other place suitable for human 

occupancy or night lodging of persons or for carrying on 

business, whether or not a person is actually present. 

Testimony at the trial established that no one had lived at 

the Ray place since 1964; that neither the farmhouse nor the 

bunkhouse had electricity, heat, or running water; and that the 

house smelled strongly of wild animals and had a leaking roof. 

Nevertheless, both Sherer and the sheriff testified that they had 

seen people living in places "a lot worse." 

Tripp, who had owned the Ray place since 1947, lived in the 

house from 1948 to 1952 and now used both the farmhouse and the 

bunkhouse to store old furniture and appliances. Sherer used the 

bunkhouse to store fence posts. Tripp visited the house and 

bunkhouse about once a month, sometimes to poison mice and 

sometimes just to look around. No one had stayed overnight in the 

house or in the bunkhouse since 1964. 

In considering the defendants' motion to reduce the charge 

against them to criminal trespass, Judge Rapkoch observed that the 

bunkhouse was tight and of sound construction, though old, and was 

suitable for storage and safekeeping of antique items. Such 

buildings, he said, "have unique and personal value in themselves 

or are used as natural places for the storage of property which 

itself has real value to the owners. . . . The owners of such 

'mini-ghost towns1 . . . are entitled to have them respected." 
Therefore, the court concluded, the bunkhouse was an occupied 

structure at the time of the offenses charged. 

Under the rule we established in State v. Sunday (1980), 187 

Mont. 292, 609 P.2d 1188, a structure suitable for carrying on 

business and used regularly for that purpose is an "occupied 

structure," and wrongful entry thereto for the purpose of 

committing an offense is burglary. Here, the bunkhouse was used 

regularly by the lessee, Sherer, to store materials needed for his 

farming business, and by the owner, Tripp, to store household 

goods. It is an occupied structure, suitable for use in the 

lessee's farming business, just as the tack shed in Sundav was an 

occupied structure suitable for carrying on the owners* horse 

rental business. 

We hold that any rational trier of fact could have found the 

essential elements of the crime of burglary in this instance. The 

two defendants admitted that they had broken into the bunkhouse, an 

occupied structure, for the purpose of finding and taking away 

antique objects. The District Court properly found them guilty of 

burglary under 5 45-6-204, MCA. 

I I 

The second issue is whether the State presented sufficient 

evidence to sustain a conviction of felony theft. A person commits 

theft when he "purposely or knowingly obtains or exerts 

unauthorized control over property of the owner and has the purpose 

of depriving the owner of the property.'* Section 45-6-301(l), MCA. 

If the property exceeds $300 in value, the theft is felony theft 
under f 45-6-301(6)(b), MCA. The value of stolen property is the 

market value at the time and place of the crime. Section 45-2- 

101(69) (a) , MCA. 

Pierce and Ferdinand removed the following objects from 

Tripp's bunkhouse: 

Seth Thomas wall clock 

Two photographs in leather cases 

School desk 

Oil lamp with chimney 

Shaving mug with three brushes 

Hand crank telephone 

Wall mirror with thermometer 

Square glass bottle with cork 

Schilling spice can 

Boraxo hand cleaner can 

Car wash compound 

At the trial the State called Patricia Lee Stoos, a school teacher 

and part time antique dealer who had examined the stolen items in 

May 1991. She testified that the retail value of these items was 

$416, though she would pay only $219 if she were to buy them for 

future resale. If the clock were restored, she said, it alone 

would be worth $400, though in its present condition its retail 

value was only $225. 

Appellants argue that the relevant value of the stolen items 

was the wholesale value, or $219, because the owner, Tripp, was not 

a retail merchant. Appellants distinguish State v. Barker (1984), 

211Mont. 452, 455-56, 685 P.2d 357, 359-60, in which we held that 

the retail value of a pair of boots stolen from a clothing store 

was the market value for the purpose of deciding whether the 

defendant was guilty of felony theft: 

It was not error to instruct that the market value of the 

boots meant their retail price. . . . Certainly here the 
wholesale price of the merchant could not be considered 

their market value. . . . The price at which the merchant 

offers to sell his merchandise ordinarily is its market 

value, though not always. 

We have applied this rule to property stolen from nonmerchants like 

Tripp as well as to property stolen from merchants. In State v. 

Fox (1984), 212 Mont. 488, 689 P.2d 252, for example, we found that 

testimony by the owner of a retail computer store was sufficient 

evidence of the value of computer equipment stolen from an 

apartment. See also State v. Dess (1984), 207 Mont. 468, 674 P.2d 

502 (value of bicycles stolen from private owner was established by 

testimony from retail bicycle shop owners). 

The weight of the evidence and the credibility of the 

witnesses are exclusively the province of the trier of fact. State 

v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. When 

conflicting evidence of value is presented, it is for the trier of 

fact to determine which evidence is dispositive. State v. Ramstead 

(1990), 243 Mont. 162, 170-71, 793 P.2d 802, 807. Here, any 

rational trier of fact could have found that the retail value 

assessed by a local antique dealer was in fact the market value of 

the stolen goods. The District Court properly adopted that value 

in denying the appellants' motion to dismiss the felony theft 

charge. 

AFFIRMED. 
We concur: 
November 24, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Bradley B. Parrish 

Attorney at Law 

209 Bank Electric Bldg. 

Lewistown, MT 59457 

Craig R. Buehler 

Attorney at Law 

505 West Main St., Ste. 210 

Lewistown, MT 59457 

Hon. Marc Racicot, Attorney General 

Paul D. Johnson, Assistant 

Justice Bldg. 

Helena. MT 59620 

James A. Hubble 

Judith Basin County Attorney 

P.O. Box 556 

Stanford, MT 59479 

ED SMITH 

CLERK OF THE SUPREME COURT